April 28, 2010

Supreme Court Sends 'Mojave Cross' Case Back For More Work

By Mark Memmott

A lower court was wrong to invalidate a plan that would keep the "Mojave cross" on top of a rock formation in what is now the Mojave National Preserve, the U.S. Supreme Court ruled in a 5-4 decision announced this morning.

The court did not directly address the issue that had brought the case national attention: Whether the cross, because it is on federal land, violates the Constitution's ban on government establishment of religion.

Instead, the opinion (written by Justice Anthony Kennedy) focuses on the question of whether lower courts were right in rejecting a plan to transfer control of the land around the cross from the government to the Veterans of Foreign Wars, which placed the cross on the rock in 1934.

"A court may order an injunction only after taking into account all the circumstances bearing on the need for prospective relief," the opinion reads. "Here, the District Court did not engage in the appropriate inquiry. The land-transfer statute was a substantial change in circumstances bearing on the propriety of the requested relief. By dismissing as illicit the motives of Congress in passing it, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage."

The case now goes back to the lower courts.